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FEBRUARY 14, 2012 -- Kentucky -- A Jefferson Circuit Court jury on Monday awarded $8 million in damages to the estate of a retired surgeon whose legs were broken while he was in the care of Treyton Oak Towers in Louisville.
The verdict against the nonprofit nursing home was returned after a two-week trial before Judge Brian C. Edwards.
Attorneys William Garmer and Matt Minner said that Dr. David Griffin died less than two months after he was improperly transferred from a chair into his bed — and that Treyton Oak tried to cover up what happened.
“We got justice today and are thrilled for our clients and thrilled for the elderly citizens of Louisville,” Minner said in an interview.
Minner said after Grifffin’s legs were broken in the September 2008 incident, he was put back in bed “like it didn’t happen” and employees were ordered to change medical records and cover the incident up.
Because of a stroke, Griffin couldn’t tell anybody “about the agony he was in,” Minner said.
After being found with two broken bones on Sept. 24, 2008, he was treated at a hospital and later transferred to a different nursing home. He died Nov. 3.
Scott Whonsetler, who defended Treyton Oak Towers, said it would appeal.
“We are profoundly, profoundly disappointed that we were unable to convey to the jury how much we cared for this man,” he said in an interview.
Whonsetler also said “we categorically deny that there was any coverup whatsoever” and said no abuse or neglect was ever substantiated.
Whonsetler said Griffin had severe osteoporosis and doctors failed to inform nursing home employees of this diagnosis. Whonsetler said it is unknown exactly how Griffin’s legs were broken.
The verdict was returned after the jury deliberated for about two hours and included $2 million for pain and suffering, $1 million for violating the state nursing home statute and $5 million in punitive damages.
The plaintiffs claimed Griffin was transferred without a lift and by only one nursing assistant, in violation of the nursing home’s care plan, which required two assistants.
That was disputed by the nursing home. No one answered a phone call to the nursing home.
Griffin was in his mid-80s and had retired many years before he was injured, Garmer said.
He had been a patient in Treyton Oak Tower’s skilled residential facility.
Copyright © 2012 www.courier-journal.com. All rights reserved.
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SEPTEMBER 12, 2011 -- WASHINGTON — More than 90 percent of nursing homes employ one or more people who have been convicted of at least one crime, federal investigators said Wednesday in a new report. In addition, they said, 5 percent of all nursing home employees have at least one criminal conviction.
“Our analysis of F.B.I. criminal history records revealed that 92 percent of nursing facilities employed at least one individual with at least one criminal conviction,” Mr. Levinson said. “Nearly half of nursing facilities employed five or more individuals with at least one conviction. For example, a nursing facility with a total of 164 employees had 34 employees with at least one conviction each.”
Charlene A. Harrington, a professor at the School of Nursing of the University of California, San Francisco, said: “This sounds like a very important study. It cries out for additional regulation. Residents in these homes are so vulnerable.”
The inspector general said that no federal law or regulation specifically required nursing homes to check federal or state criminal history records for prospective employees. Ten states require a check of F.B.I. and state records, Mr. Levinson said, while 33 require a check of state records, and the remainder do not have explicit requirements.
Given the patchwork of requirements, people convicted of crimes in one state have been able to obtain jobs at nursing homes in other states. Moreover, Mr. Levinson said, “Some states allow individual nursing facilities to make decisions regarding the employability of individuals with criminal convictions, while others rely on a state agency.”
Senator Herb Kohl, Democrat of Wisconsin, who has investigated nursing homes as chairman of the Aging Committee, said: “The current system of background checks is haphazard, inconsistent and full of gaping holes in many states. Predators can easily evade detection during the hiring process, securing jobs that allow them to assault, abuse and steal from defenseless elders.”
The most common types of conviction were for crimes against property, like burglary, and drug-related offenses. But some nursing home employees had been convicted of crimes against persons, like assault.
Federal rules say that nursing homes must not employ people who have been found guilty of abusing, neglecting or mistreating patients. But F.B.I. records do not always indicate if the victim was a nursing home resident.
Most of the convictions occurred before the offenders began working in nursing homes. But for 16 percent of employees with convictions, the most recent offense occurred after they had started work in a nursing home.
Joshua M. Wiener, an expert on long-term care at RTI International, a nonprofit research institute, said nursing homes had historically had difficulty recruiting and retaining employees, especially nurse’s aides, who he said were paid an average starting wage of $10 an hour.
Dr. Harrington said that many nursing homes did background checks in a perfunctory way, and that some did not check people who applied for housekeeping, food service or laundry jobs.
“Even some of the better nursing homes have problems with theft, rampant theft of residents’ clothing and personal possessions, including jewelry,” Dr. Harrington said. “People convicted of crimes are often left alone with nursing home residents because the supervision of care is, in many homes, very inadequate.”
The new health care law offers $160 million to states to improve criminal background checks on prospective employees at nursing homes and other providers of long-term care.
Copyright 2011 -- Robert Pear -- New York Times
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SEPTEMBER 7, 2011 -- Nursing homes in California find themselves between a rock and several hard places, some of them potentially crushing.
The rock is the economic recession, a larger, harder-to-get-past obstacle than previous financial downturns. The hard places include reductions in federal and state funding for Medicare and Medicaid, a ratings downgrade for major national nursing home operators and the likelihood of even larger cutbacks if deficit-reducing politicians make more cuts to federal health programs.
"These are very hard times for nursing homes, perhaps the hardest we've seen," Alan Rosenbloom, president of the Alliance for Quality Nursing Home Care, said. "There were some difficult times in 1998 following the passage of the Balanced Budget Act of 1997. Medicare cuts resulted in reduced capacity, staffing reductions, and as a result government citations went up almost 10%.
"The situation now is actually more precarious than it was in 1998 because of a much worse Medicaid outlook," Rosenbloom said. "Medicaid tended to pay better than Medicare in those days, so some facilities could make up some of their losses through Medicaid. But not now," Rosenbloom said.
"I don't think there is any state where Medicaid payments pay what it actually costs to care for patients, and there's a good possibility it's going to get even worse," Rosenbloom said.
California Budget Cuts Add Extra Problems
As of April, California's Medicaid program, Medi-Cal, ranked 47th among the 50 states in reimbursement for medical care. Those payment rates dropped another notch this summer.
In June, Gov. Jerry Brown (D) signed a budget package calling for a 10% reduction in Medi-Cal payments for skilled-nursing facilities and other providers. The cutback, subject to CMS approval, is scheduled to begin early next year and be in effect for 14 months. The temporary Medi-Cal cut comes on top of an 11.1% reduction in Medicare payments. Beginning Oct. 1, California nursing facilities will see a $380 million cut in their annual Medicare payments under a new payment structure CMS announced earlier this year. Part of the new payment scenario includes more restrictive guidelines on payments for therapy.
After the Medicare cuts were announced, ratings agency Standard & Poor's downgraded all six for-profit nursing home companies on its Credit Watch and labeled them with a "negative outlook." The downgrade, attributed to the reduction in Medicare reimbursements, is expected to make it more difficult for all nursing homes to get bank loans and arrange financing. Although the downgrade directly affects only for-profit companies, the entire sector is expected to feel the repercussions.
The six companies are the holding company for Golden Living, Genoa Healthcare Group, HCR Healthcare, Kindred Healthcare, Skilled Healthcare and Sun Healthcare.
Skilled Healthcare and Sun Healthcare are the largest operators in California. Neither responded to requests for comment.
Jim Gomez, CEO and president of the California Association of Health Facilities, said, "The combination of federal and state cutbacks and the rating downgrade could have profound implications on the delivery of skilled-nursing care."
"We're nearing the tipping point where payments are not sufficient enough to enlist providers to make care and services available. The negative credit outlook will also mean higher borrowing costs for large and small providers," Gomez said.
Nursing Homes Face 'Negative Margin Status'
According to a national report released two weeks ago, nursing homes, the country's second-largest employer, could be pushed into the red by cuts in federal programs.
The report -- by Avalere Health, a health research firm -- shows that Medicare payment reductions and changes in group therapy coverage will erase nursing homes' slim 3.8% operating margin to zero next year. If there are more Medicare and Medicaid cuts as part of an effort to reduce the national deficit, nursing homes will move into "negative margin status" in coming years, according to Avalere.
The prospect of breaking even or losing money coupled with the Standard & Poor's downgrade will make it hard for nursing homes to sustain -- let alone increase -- operations at a time when baby boomers, the largest demographic segment of the population, march toward old age and nursing homes.
"California has about 1,100 nursing homes," Rosenbloom said, "and every one of them will be impacted, whether they're for-profit or not-for-profit. The ratings downgrade for large, publicly traded companies has a ripple effect for everybody else. It will affect borrowing relationships throughout the sector."
Lobbying Under Way To Spare Nursing Homes
The California Association of Health Facilities is urging Rep. Xavier Becerra (D-Los Angeles) to oppose additional federal cuts to skilled-nursing facilities that could be proposed by the newly formed Joint Select Committee on Deficit Reduction. Becerra is one of three House members House Minority Leader Nancy Pelosi (D-Calif.) named to the committee last month.
"Congressman Becerra has demonstrated a long-standing commitment to recipients of Medicaid and Medicare," CAHF's Gomez said in a prepared statement. "While we are confident that he will dedicate himself to finding bipartisan solutions to trim the deficit, we must emphasize the serious impact any additional cuts to skilled-nursing facilities would have on access to care."
About two-thirds of the residents in California nursing facilities rely on Medi-Cal to pay for their care, according to CAHF. Cuts affecting dual eligibles -- beneficiaries of both Medi-Cal and Medicare -- are especially problematic for nursing homes.
CAHF and other California health care providers also have appealed directly to CMS regulators to block the state's 10% Medi-Cal reduction, particularly in light of Medicare cutbacks and the potentially significant effect on access to care they might produce in California.
Copyright 2011 George Lauer, California Healthline Features Editor
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September 1, 2011 -- The New York Times reports that that nearly one in seven elderly nursing home residents, almost all of them with dementia, are given powerful atypical antipsychotic drugs even though the medicines increase the risk of death and are not approved for such treatments, a government audit found.
More than half of the antipsychotics paid for by the federal Medicare program in the first half of 2007 were “erroneous,” the audit found, costing the program $116 million for those six months.
“Government, taxpayers, nursing home residents as well as their families and caregivers should be outraged and seek solutions,” Daniel R. Levinson, inspector general of the Department of Health and Human Services, wrote in announcing the audit results.
Mr. Levinson noted that such drugs — which include Risperdal, Zyprexa, Seroquel, Abilify and Geodon — are “potentially lethal” to many of the patients getting them and that some drug manufacturers illegally marketed their medicines for these uses “putting profits before safety.”
The article continues: “In response to the audit, the Centers for Medicare and Medicaid Services said that some of the inappropriate use of antipsychotics in elderly nursing home patients is a result of drug makers’ paying kickbacks to nursing homes to increase prescriptions for the medicines.”
Copyright 2011 -- The New York Times
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August 29, 2011 -- New York -- The number of older Americans living in nursing homes continues to fall, and the proportion of residents who are black, Hispanic or Asian has climbed sharply. But don’t expect cheers from the Brown University researchers who’ve tracked this major shift in long-term care.
The back story here is that for years advocates have urged the federal government to strengthen alternatives so that fewer old people have to live, and die, in nursing homes. Nobody really wants to be there — seniors historically have said they prefer to remain at home as long as possible. But the system was long out of kilter: Medicaid would pay for nursing home care, but was much stingier about underwriting home care, assisted living and other options.
This led to an extended attempt at “rebalancing” — funneling more Medicaid money into home and community programs and less into institutionalization. And it’s working. Though Medicaid still devoted only 42 percent of its spending on long-term care to home and community programs in 2008, that’s more than double the proportion in 1995.
“It’s been a gradual 20- to 30-year effort, and the pace is getting faster,” said Zhanlian Feng of the Center for Gerontology and Health Care Research at Brown University.
That’s one reason the nation’s nursing home population fell from 1.6 million elderly residents in the 1990 to 1.2 million in 2008.
At the same time, the nursing home population is growing more ethnically and racially diverse. “Thirty years ago, reports from the Institute on Medicine and from civil rights groups raised a lot of concern about lack of access to nursing homes” for minority elders, Dr. Feng said. But over the decade from 1999 to 2008, the number of black residents in nursing homes grew by 10.8 percent, and the Asian and Hispanic populations climbed by more than 50 percent.
Good news, right? Maybe not. “On the surface, it looks like we’ve achieved parity,” Dr. Feng told me in an interview. “But this is disparity in disguise.”
He and his colleagues, analyzing federal data on residents in nursing homes that receive Medicare and Medicaid (virtually all of them), just published their findings in the journal Health Affairs. They’ve turned up some disturbing developments.
“Whites are aging as well, but you’re not seeing more of them in nursing homes,” Dr. Feng said. “Their numbers are declining.” The proportion of white residents fell 10.2 percent over the decade, while the growth in minority nursing home residents outpaced the growth in the nation’s minority population in general.
What’s happening? “Minorities don’t have as many choices as white elders,” said Dr. Feng.
Take assisted living facilities, which have siphoned off more than a million residents who might earlier have entered nursing homes. Assisted living facilities are expensive, generally private-pay and located in affluent communities.
“On average, whites have more income and education and can better afford these options,” Dr. Feng said. “They don’t have to go to nursing homes, or they’re better able to delay going.”
With greater scrutiny, then, this demographic trend represents a less happy reality. Just as minority seniors are pouring into nursing homes, whites are turning to more attractive choices and staying out.
Because there’s much less data on who, exactly, relies on home and community services, compared with who enters nursing homes, Dr. Feng is couching this explanation as a hypothesis.
He notes that the statistics may also reflect cultural changes. Immigrant communities that care for parents in multigenerational households may be less able to maintain that practice as they acculturate. “A lot of things are happening to undermine those traditional family options,” he said. He’s seen a similar shift in his native China, a topic I’ll return to in a subsequent post.
Over all, he sees a good news-bad news story, in which minority seniors get stuck in the institutions that whites have the means to avoid. “I’m struck by this persistent disparity,” Dr. Feng said. “It looks like we’re making some progress, but not really. The disparities are still there and are deeply rooted in history, geography, segregation and socioeconomic differences.”
Copyright Paul Span -- New York Times 2011 |
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AUGUST 22, 2011: Because of the unethical actions of a few people out to make money, whiplash injuries may be the most misunderstood back and neck injury. When many people hear about a whiplash complaint, they assume the neck injury is a fake. But the truth is, whiplash can be just as serious as any back injury or neck injury, causing serious pain for victims.
Part of the problem with whiplash injuries is that people will fake the injury as a way of making money off an accident. A variety of accidents can result in a whiplash injury and the symptoms are easy to fake. One of the symptoms of whiplash is neck discomfort, which can be difficult for doctors or experts to refute. But for those who suffer an actual whiplash injury, the consequences are very real.
Whiplash injuries occur when the victim's body remains still but the head is thrust backward and then very quickly forward—similar to how the body would respond in a rear-end car accident. Although people use the word whiplash to describe the injuries, whiplash actually describes the motion of the head and neck. The injuries have a variety of names, including neck sprain and neck strain.
Symptoms of whiplash injuries include neck pain and swelling, neck stiffness, dizziness, tenderness in the back, muscle spasms, difficulty moving the neck, and headache and pain that shoots from the neck into the shoulder. According to the National Institute of Neurological Disorders and Stroke, some patients may also experience nervousness, irritability, memory loss and problems with concentration. Symptoms may appear immediately after the injury occurs or may take a few days.
Although most whiplash injuries involve minor soft tissue damage and victims fully recover from their injuries, some victims suffer a fracture of the vertebra and/or dislocation of the vertebra, which can have more serious consequences. Damage to the vertebra can result in temporary paralysis and permanent damage to the nerves in the area.
Whiplash injuries can be incredibly painful and they can require months of rehabilitation for the victim to recover. For most patients, recovery happens relatively quickly, but those with severe whiplash injuries might suffer from chronic pain, chronic headaches and spinal cord damage. For these patients, recovery can be a long process, and they may never fully recover.
By Heidi Turner
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AUGUST 17, 2011 -- (AP) CHICAGO - The nation's two largest hot dog makers are taking their legal beefs Monday to federal court in Chicago, where a judge will determine whether Oscar Mayer or Ball Park franks broke false-advertising laws in their efforts to become top dog.
Legal arguments in the long-ranging wiener war between Chicago companies pit Sara Lee Corp, which makes Ball Park franks, against Kraft Foods Inc., which makes Oscar Mayer. The case could clarify how far companies nationwide can go when boasting that their product is better than a competitor's.
Thousands of pages of filings in three years of pretrial litigation by both food-industry giants demonstrate that the stakes are high.
Sara Lee fired the first volley in a 2009 lawsuit singling out Oscar Mayer ads that brag its dogs beat out Ball Park franks in a national taste test. Those tests, Sara Lee argued, stacked the deck against Ball Park in part by altering the way the hot dogs were cooked and served.
The lawsuit also contends that Oscar Mayer touts its Jumbo Beef Franks as "100 percent pure beef," arguing that the claim is untrue, cast aspersions on Ball Park franks and damaged their sales.
Kraft defends the "100 percent pure beef" tag, saying its intent was to state that the only meat used is beef. Some industry hot dogs include a mix of turkey, pork, chicken or other meats. Kraft further argues that the "pure beef" label is justified because surveys show a perception among some consumers that hot dogs contain "mystery meats."
Kraft filed its own lawsuit in 2009, alleging Sara Lee ran false and deceptive ads including a campaign where Ball Parks are heralded as "America's Best Franks." The ad further asserts that other hot dogs "aren't even in the same league."
While implications of the case are serious, even litigants have injected humor into the debate.
In a ruling this spring denying a Sara Lee motion for Kraft to disclose its consumer surveys, Judge Morton Denlow noted the issue arose "on opening day of baseball season in Chicago" and that Sara Lee "strikes out" in justifying its motion.
And in first announcing the lawsuit, Ball Park brand director Chuck Hemmingway said in a press statement: "Simply put, we believe that these untrue statements are all a bunch of bologna."
© 2011 The Associated Press. All Rights Reserved. |
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AUGUST 15, 2011 -- A federal appeals court panel on Friday struck down the requirement in President Barack Obama's health care overhaul package that virtually all Americans must carry health insurance or face penalties.
The divided three-judge panel of the 11th Circuit Court of Appeals struck down the so-called individual mandate, siding with 26 states that had sued to block the law. But the panel didn't go as far as a lower court that had invalidated the entire overhaul as unconstitutional.
The states and other critics argued the law violates people's rights, while the Justice Department countered that the legislative branch was exercising a "quintessential" power.
The decision, penned by Chief Judge Joel Dubina and Circuit Judge Frank Hull, found that "the individual mandate contained in the Act exceeds Congress's enumerated commerce power."
"What Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die," the opinion said.
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AUGUST 11, 2011 -- It's conventional wisdom among trial lawyers that you might very well be on your way to winning a case if your closing argument brings a juror to tears.
So imagine what attorney Robert Mongeluzzi must have been thinking when, 20 minutes into his opening statement on Monday in a personal injury case, Juror No.1 fainted.
Mongeluzzi was in the midst of describing a particularly grisly surgical procedure in which doctors were removing sections of rotting flesh and bone in the hope of avoiding an amputation of plaintiff Gary Pettet's right leg.
According to accounts from the plaintiffs team — Mongeluzzi and Andrew Duffy of Saltz Mongeluzzi Barrett & Bendesky and Joel Wayne Garber of Voorhees, N.J. — the juror, a teacher from Philadelphia's Chestnut Hill section, had flinched and winced a few times and then suddenly pitched backward in her chair as her eyes rolled back in her head and she lost consciousness.
As her fellow jurors steadied her to prevent a fall, Mongeluzzi turned to Philadelphia Common Pleas Judge John M. Younge, who ordered his staff to call 911 and summon EMTs.
The trial never resumed because the impact of Mongeluzzi's oratory apparently gave the defense a case of the vapors, too, and the lawyers soon reported to Younge that they had struck a $10 million settlement — nearly double the figure offered before trial and about five times the amount offered in a failed mediation late last year.
For the plaintiff, the settlement brought a surprisingly swift conclusion to a court battle sparked by a life-changing auto accident in the early morning hours of July 3, 2007.
Pettet, a cement mason from Berlin, N.J., was driving to work and had just crossed the Ben Franklin Bridge into Philadelphia when he was struck by a PATCO truck driven by Stephen Cassidy.
PATCO's lawyers ultimately stipulated to liability in the case when a video from the bridge revealed that the accident was caused by Cassidy running a red light.
Pettet's truck was slammed into a median strip in the accident and he suffered multiple breaks of his right leg and a shattering of his right ankle.
Over the next few months, Pettet underwent 12 surgeries, including the installation of plates and screws in his leg.
But Mongeluzzi told the jury that the surgeries resulted in a series of complications and infections that ultimately forced the doctors to perform an amputation.
In his opening speech, Mongeluzzi described some of Pettet's harrowing medical procedures in vivid detail.
In the final minutes of his talk before the juror fainted, Mongeluzzi was describing a debriding procedure that doctors were forced to perform because the infection had become serious.
Mongeluzzi explained that in a debridement, the doctors "cut the infected, rotting flesh out of his ankle. And that includes his skin, that includes the subcutaneous muscle, and that includes dead, rotting, infected bone."
At the plaintiffs counsel table, Duffy said he was watching the jurors and noticed that Juror No. 1 was leaning forward, was extremely focused and seemed to be finding the details difficult to endure as she flinched at some of the more grisly moments.
Mongeluzzi went on to explain that the first debridement was not successful and was beginning to describe a second, similar procedure that was performed three days later when the juror was overcome.
Garber said the juror suddenly sat upright for a moment and that her head went back as she closed her eyes.
A transcript of the proceedings shows that Mongeluzzi interrupted his speech and said, "Your honor," but the transcribing ends there and does not record Younge's instructions to clear the courtroom and call for medical help.
In an interview, Garber said he had handled Pettet's case on his own for two years and decided to join forces with Mongeluzzi when it became clear that it could not be settled.
Prior to the trial, Garber said, the highest offer from the defense was $2.5 million. Mongeluzzi said the defense raised its offer to $5.25 million during jury selection but that he had insisted the case "could not settle for less than eight figures."
The plaintiffs team said they had expected to return to the courtroom after lunch to resume the trial, but that defense attorney John J. Snyder of Rawle & Henderson stopped them from leaving the courthouse and asked to renew settlement talks.
Snyder could not be reached for comment on the settlement.
Contact U.S. Courthouse Correspondent Shannon P. Duffy at 215-880-3700 or
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April 13, 2011 -- SAN FRANCISCO (AP) - A federal appeals court ruled Monday that former Harvard University schoolmates of Facebook founder Mark Zuckerberg can't undo their settlement over creation of the social networking site.
The 9th U.S. Circuit Court of Appeals said Monday that Tyler and Cameron Winklevoss were savvy enough to understand what they were agreeing to when they signed the agreement in 2008. The deal called for a $20 million cash payment and a partial ownership of Facebook. A third classmate, Divya Narendra, was part of the settlement with the twins but did not pursue the second lawsuit seeking to undo the agreement.
Monday's ruling upholds a lower court decision enforcing the settlement during the six years of litigation that grew so contentious that the dispute was dramatized in the Oscar-nominated film, "The Social Network."
The settlement is now worth more than $160 million because of Facebook's increased valuation.
The twins had alleged they were misled about Facebook's value when they agreed to settle their lawsuit that claimed Zuckerberg stole their idea to launch Facebook.
"At some point, litigation must come to an end," chief justice Alex Kozinksi wrote for the unanimous three-judge panel "That point has now been reached."
The twins alleged they were misled into believing the company was worth $35.90 a share because of an investment by Microsoft Corp. But they argued that the company later valued the company at $8.88 for tax purposes. The twins argue they would have demanded more stock in the company based on the lower valuation.
Kozinski said the twins were "sophisticated parties" when they agreed to the settlement during a mediation meeting.
"They brought half-a-dozen lawyers to the mediation," Kozinksi wrote.
Facebook said Monday it was pleased by the ruling. Lawyers for the Winklevoss twins said they are reviewing the decision and have not decided on their next step. The twins could ask the Supreme Court to consider the case.
-- By PAUL ELIAS Associated Press
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